Judge asks DHS to delay new personnel regulations for two weeks

A federal judge asked the Homeland Security Department to stall implementation of its new personnel system until Aug. 15, allowing time to rule on a challenge to the system filed by unions representing employees.

Judge Rosemary Collyer heard arguments Thursday on a motion filed by the National Treasury Employees Union and four other labor organizations for a temporary injunction to halt the planned Aug. 1 implementation at DHS. Department officials filed a response to the unions' request earlier this week, arguing that implementation should follow its planned course.

The temporary injunction would prevent execution of the rules until their legality was decided by the court.

Instead of ruling now on the temporary injunction and later on the issues, Collyer said she could rule on both concurrently if DHS officials agreed to delay implementation for two weeks. She gave DHS officials until Friday to respond to her request.

NTEU General Counsel Gregory O'Duden called the judge's request "a very good development."

Joseph Lobue, attorney for the government, said, "I understand from the agency that the agency does wish to continue with this on Aug. 1." However, Lobue said he did not have the authority to make the decision and would confer with department officials.

Before her request for extra time, Collyer heard more than two hours of arguments from both sides on the motion. Some of the arguments centered on whether the congressional mandate, which was designed to give DHS greater personnel flexibility to respond to terrorist attacks, gave enough weight to collective bargaining rights.

"When the act was being considered on Capitol Hill, there was great debate as to whether, given the duties and mission of the department, the concept of collective bargaining in the federal sector ought to be imported at all," Collyer said.

She said Congress did make the policy judgment to guarantee the right for employees to engage in collective bargaining, and that she is concerned that DHS is not following that judgment because it does not guarantee that collective bargaining agreements are permanent.

In his argument, Lobue noted that individual ports, which fall under DHS authority, now negotiate overtime rules and regulations separately. Lobue said the DHS secretary cannot operate the department if he cannot move employees between ports because of varied labor agreements, and needs to be able to quickly change agreements.

While Collyer was careful to say she is not making any promises on how she will rule, she said that while she understands the department's need to be "nimble," she is "honestly really concerned about whether the secretary has overstepped" his boundaries in these personnel regulations."

According to O'Duden, Collyer has an extensive labor relations background, including time served at the National Labor Relations Board.

The arguments were heard in the U.S. District Court for the District of Columbia. If DHS does not agree to the request for extra time, Collyer has until Aug. 1 to rule on the request for a temporary injunction.